Avery v. New Hampshire Department of Education
162 N.H. 604
| N.H. | 2011Background
- In December 2009, the Concord School District voted to demolish and rebuild Kimball School, with a lot size that did not meet Ed 321.03(f)(1).
- DOE granted a waiver of the minimum lot size requirements to the District, enabling school building aid under RSA 198:15-a and RSA 198:15-b.
- The Averys, abutting rental-property owners near Kimball School, filed in August 2010 for a declaratory judgment that the waiver was invalid for failing to include data about land values and alternative properties.
- They alleged the waiver application lacked pertinent data required by Ed 321.03(h) and Ed 321.30 and thus DOE acted illegally and the waiver diminished their property value.
- The trial court dismissed for lack of standing; the issue on appeal is whether the Averys have standing to challenge the waiver under RSA 491:22 and RSA 541-A:24.
- The reviewing court applied a de novo standard to standing, affirmed the trial court, and held public-policy concerns about abutter standing are for the legislature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Avery have standing to challenge the waiver under RSA 491:22? | Avery asserts injury to abutter rights and potential loss of property value suffices under RSA 541-A:24. | District argues Avery lacks a present legal right impaired by the waiver; injury is too remote and unrelated to waiver purpose. | No standing; petitioners failed to show a present legal right impaired by the waiver. |
| Is the declaratory judgment proper under RSA 491:22 and RSA 541-A:24 given lack of standing? | Declaratory judgment is appropriate to test validity when injury to rights is alleged. | Without standing, declaratory relief is unavailable. | Declaratory judgment action barred for lack of standing; dismissal affirmed. |
| Should abutter standing to challenge waivers be recognized as a matter of public policy? | Abutters should have standing to ensure property-value protection and transparency in waiver data. | Public policy concerns reserved to legislature; not proper in this forum. | Public policy not addressed; reserved for legislative action. |
Key Cases Cited
- Baer v. N.H. Dep’t of Educ., 160 N.H. 727 (2010) (standing requires impairment of a present right; not merely injury)
- Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578 (2000) (standing inquiry focuses on whether a legal injury is shown)
- Benson v. N.H. Ins. Guaranty Assoc., 151 N.H. 590 (2004) (declaratory judgments require proper standing)
- Town of Orford v. N.H. Air Resources Comm., 128 N.H. 539 (1986) (standing tied to the declaratory judgment framework)
- In re Nelson, 113 N.H. 127 (1973) (standing under RSA chapter 541 requires injury in fact)